Will Trump’s Clean-Water Rollback Imperil NJ’s Small Streams, Wetlands?

Tom Johnson | September 17, 2019 | Energy & Environment
Experts are divided, but one possible outcome could make New Jersey more vulnerable to water pollution from other states

stream
The Trump administration’s rollback last week of a key provision of the Clean Water Act isn’t much of a surprise, but how much it will impact water quality in New Jersey is still a matter of debate.

In finalizing a repeal Thursday of an Obama-era rule to protect small streams and wetlands, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers argued it would end regulatory uncertainty about what waters are covered by the federal law.

But here in New Jersey, the state has authority over both federal programs governing water quality and wetlands, imposing, in most cases, more stringent protections than afforded by the feds.

How much will it hurt?

“It won’t affect us in any significant way,’’ said Dennis Toft, an environmental attorney with Chiesa Shahinian and Giantomasi, explaining the state’s jurisdiction over federal programs contributes, in part, to lessening the impact of the repeal.

Unlike other states and the federal government, New Jersey also regulates transition areas near wetlands and riparian lands, Toft said. “It recognizes the fact that we are more developed and need buffer areas around waterways and need to protect those streams.’’

The so-called Waters of the United States rule has been a flashpoint of controversy for years, since it extended protections to small streams, wetlands and intermittent waterways in what critics called a classic case of regulatory overreach.

But advocates said the rule sought to protect tributaries, wetlands and intermittent waterways that shield downstream waters, a particular concern among states where pollution from neighbors with less stringent regulations could degrade water quality.

“It allows for more flooding and pollution,’’ said Jeff Tittel, director of the New Jersey Sierra Club. “It could have a big impact on places like the Delaware River,’’ he said. It is an argument state officials have made in the past when opposing the proposed rollback, he added.

Neighboring pollution could take toll

This spring, New Jersey joined 13 other states and the District of Columbia in opposing the repeal. Rolling back federal protections over wetlands in other states could have a devastating effect even with strong safeguards in place in New Jersey.

“There’s literally thousands of miles of intermittent streams across New Jersey that could be affected by this,’’ said Doug O’Malley, director of Environment New Jersey. “Just because you can’t put a boat in the water doesn’t mean it does not need protection.’’

More than half of all stream-miles in the Delaware River Watershed could be left without federal protections, according to an analysis by Environment America, the parent of Environment New Jersey. More than six million people in the basin obtain their drinking water from streams that rely on intermittent or headwater areas, according to the group.

EPA Administrator Andrew Wheeler, however, said the repeal of the old rule and adoption of a new definition of the regulation will provide greater regulatory certainty for farmers, landowners, home builders and other developers nationwide.

In any event, the rule is likely to trigger more litigation, including from New Jersey and other states that have often challenged rollbacks of environmental rule by the Trump administration and environmental groups.